In affirming a $1 million verdict a Wisconsin appellate tribunal recognized the “horrendous pain and suffering” endured by a healthcare worker who became allergic to proteins in natural rubber latex, which was triggered by her exposure to latex gloves.
Linda M. Green was employed as a radiology technologist and computerized tomography technologist at St. Joseph’s Hospital where she used gloves manufactured by Smith & Nephew.
In April, 1991 she became sensitized to latex and developed severe reactions which initially involved cracking, soreness and peeling of her hands at work. She later developed respiratory difficulties and became short of breath, coughed, and felt like her throat was tightening up.
On occasion she couldn’t even talk to patients. Following her initial reaction she was unable to work and went home, but as her condition did not improve she went to a hospital emergency room and was given medications. Symptomotology reoccurred after one day of work when she experienced difficulty breathing and became frightened because she was unable to get air into her lungs. The second episode required hospitalization for five days. She was subsequently hospitalized for diagnostic testing including a bronchoscopy, the insertion of a tube into her lungs, which Ms. Green reported made her feel like she was drowning. The physician had difficulty removing the tube from her throat and she was rushed to the intensive care unit for treatment. At the time of the trial she was no longer able to work in the healthcare industry and she was so sensitized to latex proteins that she had to watch where she was going, what she was purchasing, what she was eating and what things were around her. She was fearful of walking in shopping malls because latex gloves were commonly used at food counters and in restaurants. She is required to wear a medical-alert bracelet and carries with her an epinephrine injection kit in case she develops a reaction and is unable to breath.
The Appellate court affirmed the lower court’s decision that the manufacturer of the latex gloves was strictly liable to a person who develops an adverse reaction to a product because of a defect in the product that is unreasonably dangerous. The court held that liability could be found against the manufacturer even if the danger was to a minority of the users or consumers of the product.
Therefore, the latex glove manufacturer was liable because the gloves were defective, since they contained more latex proteins than were safe for all users and consumers, and since the gloves contained a powder which made the proteins of the glove become airborne and therefore sensitized some users. Wisconsin law mandates that a manufacturer of a product can be strictly liable if the product they manufacture causes harm to some, but not all, consumers when their product was used as intended by the manufacturer.
The rationale behind this theory of liability against the manufacturer is that a seller, by marketing its product for user consumption, is deemed to have undertaken and assumed a special responsibility toward members of the consuming public who may be injured by it. The court held that the public has the right to and does expect that products placed into the stream of commerce by a manufacturer are safe.
In placing the responsibility upon the manufacturers, the court theorized that public policy demanded that the burden of accidental injuries caused by defective products intended for consumption should be placed upon those who market them and that the manufacturer should consider this responsibility as a cost of production for which it can purchase liability insurance. The appellate tribunal concluded that the consumers of such products should be entitled to the maximum protection by those who manufacture them.
In establishing this contractual relationship between the seller and the consumer, the court was in concert with the majority of jurisdictions of the United States which have held that the risk of injury in an increasingly complex and dangerous commercial and industrial society should be placed upon the seller. The ultimate burden is obviously placed upon the consumer who is required to pay a higher price for the product due to the requirement of the manufacturer to insure it or become self-insured.
The court’s opinion is limited to those products where there is a defective condition of the product that makes it unreasonably dangerous to the user or the consumer. Therefore, the article sold by the manufacturer must be “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”
The court relied upon the Restatement (Second) of Torts § 402A cmt. g (1965). That treatise indicates that a product is “defective” if it is flawed beyond the contemplation of the ordinary consumer of that product and that the product is “unreasonably dangerous” if the danger is not apparent to the ordinary consumer of that product. “ Thus, the test in Wisconsin of whether a product contains an unreasonably dangerous defect depends upon the reasonable expectations of the ordinary consumer concerning the characteristics of this type of product. If the average consumer would reasonably anticipate the dangerous condition of the product and fully appreciates the intended risk of injury it would not be unreasonably dangerous and defective.” Sumnicht vs Toyota Motor Sales, Inc., 121 Wis. 2d 338, 360 N.W.2d (Wis. 1984).
The appellate forum reviewed several other issues in rendering its opinion. The defendants had argued that jury instructions were incorrect, that expert testimony was inadmissible, that the plaintiff should not have been permitted to introduce testimony that the latex glove company had changed its manufacturing operations in 1995 to reduce protein levels in the gloves, and finally that the damage award was excessive. The court summarily dismissed all the arguments made by the defense as inappropriate.
The unanimous three judge court of appeals panel in Wisconsin has sent a loud and clear message to product manufacturers that they will be held responsible for placing defective products in the stream of commerce even if the danger posed is to a minority of the consumers of the product. Additionally, by upholding the $1 million verdict and specifically outlining the life threatening characteristics of latex allergy and the significant impact that it has upon those sensitized, it has sent a signal throughout the nation as to the magnitude of this problem and notice to all manufacturers that they will be held to a high degree of responsibility. Green v. Smith & Nephew AHP, Inc. No.98-2162 State of Wisconsin Court of Appeals (Decided Aug. 1, 2000)